Selective evidence

The saga of the Bakhtiyari family has highlighted many misconceptions about the way Australia’s refugee intake and screening system works. These misconceptions are played upon by politicians of both stripes, and are not put to rest by journalists. A story by Russell Skelton in The Age of 26 December 2004 (reprinted in the Independent Weekly in Adelaide) seriously questioned the family’s claim to be Afghans.

I had some limited dealings (as a court advocate) with the claims for refugee status by the father, Ali Bakhtiyari, as well as the claim by the children to be released from detention, and question the vehemence of the political statements and the soundness of Russell Skelton’s insinuations against the family’s interest.

The father, Ali, and mother, Roqia (and the then five children), arrived in Australia independently of one another, resulting in twin streams of inquiry and appeal into their case. Ali arrived in October 1999 and, on the basis of his written claim, was granted a Temporary Protection Visa in August 2000. However, Roqia arrived in January 2001, unaware of Ali’s presence in the country, and applied for refugee status.

In February 2001, Roqia was interviewed by a delegate of the Minister for Immigration. In early May the Government obtained a linguistic analysis which asserted that Roqia’s accent reflected that of Quetta, in Pakistan, while she used Iranian words and had some Iranian pronunciations. I did not act for Roqia, and have no knowledge of the linguistic analysis other than that provided by the Refugee Review Tribunal following the delegate’s decision, but Iran and Pakistan are on opposite sides of Afghanistan. It seems not implausible that Roqia’s language reflected the impact on the central country of the neighbours on either side, rather than that Roqia must have come from Quetta.

In May 2001 the Minister’s delegate refused Roqia and the children a refugee visa on the grounds that while it was not clear which country they were from, it was not Afghanistan. Roqia, through her lawyers, appealed to the Refugee Review Tribunal. The tribunal is set up under the Migration Act as the last line of appeal for finding the facts about a refugee claim.

Politicians (most often Philip Ruddock, but more lately Amanda Vanstone) like to talk glibly about how refugee claimants have access to a long line of appeal procedures, but they do not explain that in such court appeals, the facts of the claim are not canvassed. The process is more properly referred to as review, to distinguish it from an appeal on the merits of the case. All the Federal Court, the Full Federal Court (usually sitting as three judges) and ultimately the High Court can do, is examine the process by which the tribunal came to its decision. This results in increasingly refined and, in turn, arid discussion of what is permissible behaviour in the course of executive-branch decision-making (the tribunal is part of the executive, not the judiciary). The courts may not, on any account, examine the merits of the facts of the case. In the rare instances in which they find the process faulty, the matter is remitted to the tribunal to hear again: it is not for the courts to make merit decisions where the function of fact-finding is vested by statute in the executive.

In short, if the tribunal gives the appearance of having listened to the applicant fairly, and appears to have taken all matters relevant into account, and avoided irrelevant considerations, then how it weighs the evidence is entirely its business: no court may second-guess it.

In July 2001 the tribunal rejected Roqia’s appeal, and as Skelton observed, commented on her lack of credibility. I have recently obtained a copy of the tribunal reasons, and was struck by how culturally straight-jacketed the member constituting the tribunal appeared to be. If Roqia’s claims have any basis in fact, she had arrived in Australia straight from an existence lived in the style of Europeans in about 1340. On her account she lived in a village in provincial Afghanistan, surrounded by other sub-villages, and knew nothing of the outside world. The tribunal was not having a bar of it.

I merely note that members of the Refugee Review Tribunal should be wary of their own cultural conceptions about how the rest of the world works. On the other hand, Skelton claims that other women of Roqia’s ethnic group, Hazara, interviewed by him in her village of Charkh, laughed at her lack of knowledge.

And that in turn raises the matter of the inability of some applicants, particularly those from non-Western backgrounds, to trust ministerial delegates and tribunal members sufficiently to tell them a coherent story.
Translation of the story is another matter. I note that the Australian Financial Review (29 December 2004–3 January 2005), raised the suggestion that the translations for Roqia had been performed by Malyar Dehsabzi, an Afghan of non-Hazara background, who with his brother is now under investigation by the Department of Immigration’s Migration and Fraud Investigation Unit.

One would have hoped that the department had taken steps to ensure that the translation process had avoided the use of people from whom claimants are fleeing (Hazaras are hated by many other groups in Afghanistan), but it seems this is not so. The antipathy of other Afghans to Hazaras—the very heart of the persecution claims by most Hazaras—ought to be borne in mind by those, such as Skelton, when exploring this sort of story in public. It is not hard to guess where Skelton’s snide ‘considerable speculation’ about Roqia’s relationship with her half-brother, Mazhar Ali, or ‘the suspicion of some detainees’ would have come from.

Skelton makes much of having interviewed Ali as to his claim of having come from ‘Uruzgan province, Sharistan district and Charkh village’, a claim consistent with that made by Roqia as to her origins. Skelton goes on to write: ‘There is only one Charkh in Uruzgan …’ Yet only a paragraph later he writes of having searched the villages of Charkh Nolije and Charkh Chaprasak. Could it be that the village name ‘Charkh’ is a common one, often used in conjunction with other names? By way of example, I note that in an area of 40 miles by 24 miles an English road map shows 26 villages with ‘Aston’ in their name, and 11 in the counties of Shropshire and Staffordshire alone: six are simply ‘Aston’, the remainder having names like ‘Aston Magna’. Hell for the mailman before postcodes. Afghanistan, and Ali and Roqia, appear to be definitely pre-postcode. And there are certainly other ‘Charkhs’.

But that brings us to the story of how Ali had his refugee visa taken away from him, and was then classified as a non-refugee. It is salutary to note that throughout 2001 Ali and Roqia did not know of each other’s presence in Australia. It is apparent from the argument on Roqia’s application for review in the High Court (her lawyers took a constitutional point that avoided having to go through the Federal Court) that the Refugee Tribunal hearing Roqia’s appeal on the merits knew that Ali was in Australia, but did not tell her. It was argued that this should have been disclosed to her so she could have claimed entry as the wife of someone with a refugee visa (as Ali then had). This line of attack was repulsed as not raising a legal issue, but Australians might care to reflect on the behaviour of one of their officials who, while interviewing a person seeking humanitarian help, armed with information as to a missing spouse, withholds it. No doubt on orders from the department.

In April 2002 the department gave notice to Ali of its intention to remove his refugee visa, on the basis that he had lied as to his nation of origin. Ali made representations to the department through his lawyers, and in December 2002 the Minister’s delegate cancelled the visa. Ali appealed to the Refugee Review Tribunal. The tribunal dealt with five major areas of evidence concerning Ali’s refugee claim: a facial-mapping analysis; Pakistani government citizenship documents; a linguistic analysis; eyewitness recognition of Ali; and newspaper articles.

The department put on evidence from a facial-mapping specialist that Ali was one and the same as the person in a Pakistani government registration form photograph, the photograph then 27 years old. Ali’s then lawyers, a Sydney-based firm, responded with a report from a scientist in the field who categorically denied that facial-recognition techniques such as used by the department worked, and that such analysis was forensically useless. The tribunal brushed aside Ali’s scientist and accepted the department’s version.

The documentation fight went off in part on a letter from a widower brother-in-law of Ali’s, Teimoor Ali, ‘resident of Charkh Bagar’, who asked the District Governor of Sharistan to write to the Australian authorities to say that Ali and his family were from Afghanistan. On 6 September 2002 the Governor of Sharistan wrote to the Australian government, stating that Ali and his family (they were all enumerated in the letter) all came from Sharistan district. Of this letter the tribunal said: ‘ … the letter does not set out the basis on which the District Governor makes this statement …’ Did he write it of his own knowledge or relying on what others told him? The tribunal discounted this letter in favour of the Pakistani government registration documents, one dated to 1973 and the other to 1982, which showed an Ali Bakhtiyari as the son (and brother) of a family.

The evidence before the tribunal included material from the Pakistani government as to the efficacy of its citizenship registration scheme. Bakhtiyari is not an uncommon name. The best evidence that Ali was a citizen of Pakistan would have come from a search of the Pakistan citizenship register for the year 1998, just before he set off for Australia, to see if he turned up as the husband of Roqia and father of then five children. This search seems never to have been undertaken, and the Australian government’s claim to have evidence from the Pakistan government as to the nationality of the family, evidence never publicly disclosed, would appear to rest on the documents now more than 20 and 30 years old respectively, which themselves were internally inconsistent. The tribunal happily plumped for the aged registration forms. And why not? They contained the name Ali Bakhtiyari, and who cares how many Pakistanis might have that name?

The department then undertook an analysis of Ali’s speech, performed by a Swedish firm, Eqvator. In a little over a page, Eqvator gave no indication of the identity, credentials or skills of the person performing the analysis, nor any methodology, but, as had been the case with Roqia, referred to aspects of language reflecting both Pakistani and Iranian usage. Eqvator came to the firm conclusion that Ali’s ‘Hazaragi dialect is Pakistani. His mother tongue is Dari’, and that it ‘may with considerable certainty be said to originate from Pakistan, Quetta’.

Ali’s Sydney-based solicitors tendered not one, but two linguistic analyses of Ali’s speech, both performed by specialists who gave their names and credentials as experts, and explained their methodology. Mr Yosufi, an Australian government-recognised translator into English from Persian, Dari, Hazaragi and Pashto, concluded that Ali was ‘a Hazara from Uruzgan in Afghanistan’. Mr Mohammad, a speaker of Dari and teacher of Persian, holder of a master of arts degree in theoretical linguistics from Ohio University and a doctoral student in the department of linguistics, University of Arizona, concluded that Ali’s speech was ‘the same as the speech of other Hazaras living in Afghanistan’.

The tribunal pronounced that Mr Yosufi had not established his credentials to perform linguistic analysis (note that Eqvator had provided no credentials whatsoever), and that as regards Mr Mohammad, it ‘prefers the linguistic analysis provided by Eqvator, having regard to greater rigour given by that agency’s standards, requirements and operating procedures’. This conclusion represents an extraordinary leap of faith that has no part in a fact-finding exercise.

The lawyers then submitted statements from two men who claimed, independently of one another, to have met Ali in Afghanistan years earlier, and then run into him fortuitously in Sydney. The story of one witness was published in the Sydney Morning Herald. The tribunal is not a court, and does not have to operate on the strict rules of evidence, but the tribunal member was not going to accept these statements unless the two witnesses appeared before the tribunal. As they had not appeared, they could not be tested by the tribunal, which was not prepared to accept their assertions.

Finally, the tribunal relied on various Australian newspaper articles written in the course of 2002, particularly by journalists who claimed to have been to the village of Charkh (Skelton being the vanguard of this group) and who found no sign of the Bakhtiyaris ever having been there. The tribunal seemed to contradict its suggestion that if Ali’s eyewitnesses must be available for examination, the same might apply to journalists. The British government sends its own officials to make inquiry in cases such as these, and does not rely on newspaper reports to settle something as important as a refugee claim.

The tribunal concluded that, ‘having regard to the totality of the evidence’, Ali was from Quetta, in Pakistan, not Afghanistan. This conclusion was reached by the simple expedient of preferring the department’s evidence at all points, no matter how persuasive Ali’s material. But, the weighing of evidence is a function reserved solely for the tribunal. So long as it indicates it has looked at evidence before ditching it, no court can review its actions.

Ali sought review of this decision before the Full Federal Court, where I argued that review should take place at the British ‘human rights’ level: the decision had not merely to be not ‘unreasonable’, but had to be ‘justified’ on the evidence. The three judges gave the argument short shrift.

Ali had yet another trip through the tribunal to determine whether he was a refugee, but after the initial decision that he had lied in order to obtain his refugee visa, the answer was preordained, as were attempts at review in the Federal Court. The final round of reviews in the Federal Court did attempt to introduce ‘fresh evidence’ gathered since the tribunal hearing, including the material sent back to Australia from Afghanistan by Roqia’s brother, Mazhar Ali. Mazhar Ali was removed by the Australian government in August 2003 to Pakistan, and then moved himself back to where he always said he had come from, the Sharistan district in Afghanistan.

Skelton scoffs that this is ‘ironically a region of Afghanistan to which the Bakhtiyari family said they could never return’. Mazhar appears to have gone there specifically to obtain evidence as to the family’s origins. Ali, Roqia and the children are now faced with the same ‘irony’, as they have left Pakistan, to which they were removed, and headed into Afghanistan, attempting to prove their origins.

The documents sent by Mazhar included a number of testimonies from officials in the Bakhtiyaris’ home village and district in Uruzgan province (the officials ranked at the equivalent of mayor and governor) testifying to the family’s residence in that province until they fled the Taliban; Ali in 1999, and Roqia and the children in 2000. Under the rules of judicial review, this material was not allowed to be introduced to the reviewing court. But it is remarkable that Skelton can write of these documents: ‘The evidence he [Mazhar] has gathered, including a voter registration that can be purchased by any Afghan on the black market for A$25, is inconclusive.’ What a cheap shot. There was more material than a voter registration certificate. Still, at least the court and Skelton have seen and commented to some extent on the new material: it was presented to the Minister, who refused to acknowledge its existence.

It is that approach by the Minister, Amanda Vanstone, that neatly encapsulates the Government’s position of rigid adherence to structure. Because the tribunal is vested with the task of fact-finding in respect of refugee status, once it has made its decision against an applicant, the Government claims it cannot be swayed by any countervailing or new material. The Migration Act is stuffed full of discretions to be exercised by the Minister: there was no impediment to her looking at the new material from Afghanistan sent by Roqia’s brother, and granting the family visas on the basis of that information.

Skelton opened his account by saying that the Bakhtiyaris’ claim to refugee status was ‘based on evidence that is patchy, often contradictory, or doesn’t exist’. I can only say to him that the evidence from the Bakhtiyaris was consistent as to their origins, plausible as to their claim to be from that part of Afghanistan (see the linguistic analysis, the independent eyewitness accounts in Australia, and the official letters from Uruzgan over the period 2002–2004), and not at all patchy or contradictory. One can only surmise that Skelton’s visits to three ‘Charkhs’ may not have exhausted the villages with that name: a cursory glance through the materials in the review applications reveals a ‘Charkh Vanalej Bargar’ and a ‘Takht i Talag Barger’. Skelton and others, allowing for actions in all good faith, are wrestling with transcriptions from Dari into Latin script, and the vagaries of pronunciation.

I wonder if a family with six children might not have been the subject of reportage with a little less self-justifying swagger than Skelton’s. Perhaps they might even have received a sympathetic coverage that pointed out the coherence and plausibility of their claim.

Dr Steven Churches works in Adelaide as a lawyer in the field of public law, and in particular refugee claims.

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